Proposition 8 Goes to Court: Do Gays Get to Marry Yet or What? Proposition 8 Goes to Court: Do Gays Get to Marry Yet or What?

Proposition 8 Goes to Court: Do Gays Get to Marry Yet or What?

by Andrew Price

December 8, 2010

No, not yet, unfortunately. Here's a quick backgrounder and an explanation of how today's events fit into the saga of same-sex marriage in California.

In November of 2008, California's voters approved Proposition 8, a ballot measure that banned gay marriage, 48 to 52 percent. Gay marriage in the state was off.

Immediately after that vote, there were a number of challenges to the ban on the grounds that it was unconstitutional. One of those suits, Perry v. Schwarzenegger, went before U.S. District Chief Judge Vaughn Walker, who in August ruled against Prop 8. Gay marriage, it seemed, was back on.

But before Walker could lift the stay on same-sex marriages, supporters of Prop 8 challenged his ruling. Today, in the Ninth Circuit Court of Appeals, oral arguments began in this latest dispute about Walker's ruling.

So what happened this morning? The arguments went for more than two hours. The first half of the hearing was mostly occupied with technical details about whether the group challenging Walker's ruling even has legal standing to do so. Also at issue was whether Arnold Schwarzenegger and Jerry Brown, governor and attorney general at the time, respectively, have an obligation to defend Proposition 8 on behalf of the voters (they both opted not to).

The second half of the hearing was about the constitutionality of Proposition 8. At this point, the supporters of Proposition 8 are retreating into crazier and crazier arguments. Proposition 8 attorney Charles Cooper spent a lot of time claiming that society had a "rational basis" for defining marriage as between a man and a woman to "encourage procreation." This is suspect for a few obvious reasons. It's not as if California has a dangerous underpopulation problem, and people seem perfectly capable of procreating outside of wedlock anyway. The judges were not impressed.

Over at CBS News, Jan Crawford reports that the judges seem very likely to defend Walker's ruling (and thereby defend same-sex marriage) but it seems they're looking for a narrow way of doing that. (And that's assuming they agree that the defenders of Proposition 8 have standing in the first place.)

What's next? The ruling from this panel will come in three to twelve months. At which point we'll almost certainly have more appeals. Many believe the case will eventually end up before the supreme court, but it's unclear exactly when or how. Regardless, today seems like a step forward for gay rights.

If you want to catch up on the day's events, the San Jose Mercury News did a nice live blog of the hearing. You can also watch a recording of the hearing at C-SPAN. NPR also has a good description of some of the finer legal points.

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Proposition 8 Goes to Court: Do Gays Get to Marry Yet or What?